EXPERT REPORT OF KENT D. SYVERUD
Grutter, et al. v. Bollinger, et al., No. 97-75928 (E.D. Mich.)

I am Kent D. Syverud. I have been Dean and Garner Anthony Professor of Law at the Vanderbilt University Law School since 1997. For ten years, I was a professor at the University of Michigan Law School. For the last two years of my tenure there I also served as Associate Dean for Academic Affairs. In that role I worked with new and experienced teachers to improve the quality of teaching. I have also taught at the University of Pennsylvania Law School, the University of Tokyo Faculty of Law and Politics, and in Germany at programs sponsored by the Universities of Trier and Saarbrucken. I have taught and continue to teach courses in civil procedure, negotiation and drafting, and insurance law. I am the incoming editor of the Journal of Legal Education, which is the scholarly journal of the American Association of Law Schools. I frequently give addresses about law teaching, about the challenges of law teaching to lawyers, law teachers, judges and teachers at other universities. I have published an article on the challenges of teaching law students well. I have won teaching awards at the University of Michigan Law School, and, in my first year in my new position, at the Vanderbilt University Law School. Since 1991, I have regularly taught lawyers who are about to become law professors at the annual New Law Teachers Workshop of the Association of American Law Schools. Before becoming a law teacher I practiced law in Washington D.C.

I am not charging any fee for my expert services in this action. I am being compensated for my reasonable expenses. In the past four years, I have testified as an expert in three insurance matters: Dow Corning Corp. v. Hartford Accident & Indemnity Co. (Wayne County Circuit Court); Giant Eagle Inc. v. Federal Ins. Co. (W.D. Pa.); and Dow Chemical Co. v. Aetna (E.D. Mich.). I attach a copy of my current resume, which includes publications, to this report as an exhibit.

At the beginning of my career as a law teacher, I was skeptical of efforts to consider race as a factor in law school admissions. I was also skeptical that considering race as a factor in admissions had a positive impact on the educational experience of law students. My views on whether law schools should consider race in admissions have changed. The change has been gradual, and the product of many experiences teaching many students in many settings. I have in particular had the experience of teaching the same subject matter to classes that are racially homogenous and racially heterogeneous, and to classes where non-white students make up a tiny fraction of the enrolled students and where their numbers are more significant.

I have come to believe that all law students receive an immeasurably better legal education, and become immeasurably better lawyers, in law schools and law school classes where the student body is racially heterogeneous. It has been my experience from many conversations over the years that the vast majority of committed law teachers agree. When my students reflect on their law school experience, whether black or white, Asian or Hispanic, conservative or liberal, they also often volunteer this conclusion. I now view this agreement as indicating that those people most directly involved in the law school classroom can see the difference that racial heterogeneity makes in legal education. I have many reasons for now believing that considerations of race in law school admissions are particularly vital to providing the best possible legal education and to training the best possible lawyers.

The first reason is the unique way learning happens in the best law school classrooms. Most first-year classes in law schools are conducted by the Socratic method, in which professors call upon individual students and engage in a dialogue of questions and answers in front of the entire class. There are many variants of this method, but most professors continue to single out individual students each day to answer a series of questions suggested by the assigned reading. In my own civil procedure class, I call upon each student several times a semester, usually questioning each student for fifteen to twenty minutes. The purposes of this method are manifold; they include the desire to engage the student closely and carefully with a legal text and to make the classroom dynamic, lively, and interesting. At least as important, the method consciously seeks to make the students think, to learn from each other, and to learn to be able to see any set of facts from different points of view. Students are expected to draw upon their own backgrounds and experiences in answering questions and in making arguments. Rather than passively receiving the accumulated wisdom of the professor, students are required to grapple with their own viewpoints, and those of their colleagues, on an array of difficult situations posed by the professor and the text. The result is that, in the best classrooms, every voice is heard, and the quality of the education received is largely a function of the diversity of viewpoints and experiences among the students in the class.

It is my view, based on my experience, that racial heterogeneity dramatically enhances the ability of the best active, Socratic teaching to achieve its purposes. My best class sessions, by far, have been characterized by direct and often painful dialogue between students who are forced by the method to confront and make explicit their deepest unexamined convictions about legal issues, and also to engage in discussion with those who, because of different experiences and often because of different race, do not share those convictions. Those class sessions produce the most careful thinking, and when handled with care are the most challenging and appropriate education I can offer. It has been my experience that racial diversity in the Socratic classroom strongly fosters the kind of thinking that the best lawyers need to be able to do.

For a related reason, racial heterogeneity in a Socratic classroom produces better lawyers. As a law teacher, I am constantly struggling with the need to teach new students the obligations of a lawyer to become a zealous advocate for a client and a skilled negotiator with adversaries and others. A basic component of excelling in these roles is the ability to understand the views, goals, and tactics of a client or adversary. Good advocacy first requires understanding both the client and the adversary. Yet most of my students come to law school with strong advocacy skills and poor listening skills; they assume they already know what the viewpoint of a client or adversary must be in every situation. In particular, they often assign to people of different races and ethnic backgrounds viewpoints that are uninformed by experience or by direct dialogue with a client or adversary. They are often very wrong. They don't know what they don't know, and it is my job to show them what they have to learn, every time, from every individual client or adversary.

Nothing teaches this lesson better than a classroom where, because of abundant racial heterogeneity, common assumptions about viewpoints of different races are constantly confronted by frank discussion that at times confirms and at times profoundly confounds those assumptions. I have seen this demonstrated repeatedly, both in my civil procedure classes taught via the Socratic method and in the upper level skills class I teach on negotiation.

There is abundant criticism of legal education for failing to teach students the skills they will need to succeed as lawyers. It is an important responsibility of law schools to teach students to become able negotiators, problem solvers, managers, counselors, investigators, and mediators. It also is vital that the lawyers we train be able to participate to the fullest in a democratic society in which they will have a vital role, as officers of the court, in preserving justice. It has been my experience that skills instruction is enhanced dramatically for all students by the interaction in class of future lawyers of all races, and by the different and at times unpredicted viewpoints different people bring to the discussion. It is also my experience that civil democratic discourse among lawyers of all races, in public and in court, is something that, once experienced in the law school classroom, is valued outside it and across my students' careers.

Racial heterogeneity thus helps make better lawyers at the same time it assures that classroom discussion will not become so theoretical as to be divorced from the real differences in viewpoints that characterize many of the clients my students will need to serve.

Some examples from my teaching experience may better explain why I have come to hold these views. In my civil procedure course each year, I teach students how the finder of fact, whether judge or jury, is selected in the American federal and state systems, as well as under systems in other countries. I teach jury selection by having six to twelve students in the class assume the role of potential jurors, who are questioned by classmates serving in the role as defense and plaintiff's counsel. Male student jurors pretend to be their own fathers; female student jurors pretend to be their own mothers. The students answer the searching voir dire questions accordingly, often revealing unexpected differences in backgrounds and viewpoints that are shocking and enlightening to the class. When challenges are exercised by the plaintiff and defense counsel, it is often the case that both black and white students strike both black and white jurors.  The reasons they give, and the analysis that ensues, is remarkable to all students. The ensuing discussion of the peremptory challenge is incomparably richer than would be possible without racial heterogeneity, and the students, I believe, are incomparably better trained to understand the roles they will serve in American civil trials.

I have found that racial heterogeneity improves the quality of my classes even and especially when the subject seems far removed from issues traditionally associated with race in American law. In insurance law, I have found that my teaching of the regulation of insurance products aimed at consumers changes dramatically when the makeup of the class is racially diverse. In civil procedure, my teaching of remedies (including the remedy of garnishment) and of attorneys' fees and costs has been significantly improved, for all students, by having a diversity of views expressed among my black students as well as among my white students.

For all these reasons, I now believe racial heterogeneity is a very important contributor to a quality legal education for all students, and to the training of the best lawyers. I think a law school without significant representation of black, white, Asian, and Hispanic students in the student body will provide a significantly poorer education than a law school blessed by such a representation. And I think a lawyer trained in a law school that is racially homogeneous, will be, in the coming decades, ill-equipped to serve the functions the best lawyers will need to serve in our democracy.


"Compelling Need" Table of Contents